Affirmed by published opinion. Senior Judge HAMILTON wrote the opinion, in which Judge GREGORY and Judge DUNCAN joined.
HAMILTON, Senior Circuit Judge.
Larry Leeson (Leeson) appeals his conviction and sentence on one count of being a felon in possession of a firearm, 18 U.S.C. §§ 922(g)(1), 924(a)(2). For reasons that follow, we affirm.
On August 6, 2003, Leeson, of Nutter Fort, West Virginia, presented himself at the Veteran's Administration (V.A.) hospital in Pittsburgh, Pennsylvania. Following interaction with Leeson, the admissions desk clerk at the hospital reported to hospital security that a man, later identified as Leeson, was acting strangely in that he had used three different surnames in an attempt to obtain medical treatment or medication. The admissions desk clerk also reported that the man had a bulge in his coat which might be a gun.
Two uniformed police officers of the V.A. arrived on the scene to investigate. The first officer approached Leeson while the other hung back as back-up. After observing some sort of badge on Leeson's belt, the first officer asked Leeson if he was a police officer. Leeson falsely identified himself as Larry McDonald and falsely claimed to be an agent of the Federal Bureau of Investigation (FBI). The first officer then asked Leeson whether he had a weapon, to which question Leeson replied: "of course I have a weapon." (J.A. 283).
The two officers then requested Leeson to accompany them to the police station at the V.A. hospital in order to secure Leeson's weapon in accordance with V.A. policy. Once at the police station, Leeson surrendered his weapon, which was a .357 caliber revolver. Because the officers thought Leeson's FBI badge looked suspicious, a supervising officer contacted the FBI to verify Leeson's story. In the meantime, Leeson was allowed to return to his vehicle in the parking lot with his firearm in order to retrieve photographic identification. Once in his vehicle, Leeson fled the scene at a high rate of speed.
About the same time, the officers learned Leeson's true identity and home address and contacted the Nutter Fort Police Department about the situation, including that Leeson was carrying a firearm. The Nutter Fort Police Department contacted Sergeant Jeff McAtee (Sergeant McAtee) of the Harrison County Sheriff's Department, who was familiar with Leeson and the fact that Leeson was not an FBI
Officers of several law enforcement agencies joined in pursuit of Leeson, who led them on a dangerous high speed chase on U.S. Inter-state 79 using evasive driving maneuvers. Following Leeson's crossing into West Virginia, his vehicle began to smoke. At such time, Leeson took an exit off the interstate, brought his vehicle to a sudden stop on the exit, opened the door, and exited the vehicle. Sergeant McAtee observed the .357 caliber revolver in a holster on Leeson's belt as Leeson exited his vehicle. Because Leeson refused to put his hands on his vehicle as ordered, the officers grabbed Leeson's arms and handcuffed him. While being handcuffed, Leeson told Sergeant McAtee and the other officer handcuffing him, "[E]asy, I could have made this bad for you." (J.A. 235). The propriety of the district court's admission of this statement at trial in the face of Leeson's objection based upon Federal Rule of Evidence 403 is one of the issues on appeal.
On September 4, 2003, a federal grand jury sitting in the Northern District of West Virginia indicted Leeson on one count of being a convicted felon in possession of a firearm. 18 U.S.C. §§ 922(g)(1), 924(a)(2). Following Leeson's arraignment, he was remanded to custody to await his trial. Leeson then filed a notice of insanity defense and moved for a psychiatric examination.
Leeson's motion for a psychiatric examination was granted by a United States Magistrate Judge and, as a consequence, Leeson was transported to the Metropolitan Correctional Center (MCC Chicago), Federal Bureau of Prisons, Chicago, Illinois, for psychiatric examination.
Once at MCC Chicago, Dr. Jason Dana (Dr. Dana), holder of a doctorate in clinical psychology, examined and evaluated Leeson's mental health. On April 6, 2004, Dr. Dana prepared a forensic psychological report detailing his findings and diagnosis regarding Leeson. With regard to Leeson's sanity at the time of the instant offense, Dr. Dana's report opined: "there is no indication that he was suffering from any form of cognitive impairment or mental illness impacting his ability to understand the nature and quality, or wrongfulness of his actions at the time of the instant offense." (J.A. 867). Rather, Dr. Dana's report diagnosed Leeson as being a malingerer and of having opiate dependence by history.
Leeson's trial commenced on September 16, 2004, wherein he continued to assert an insanity defense. Leeson called Dr. Jonathan Himmelhoch (Dr. Himmelhoch), a psychiatrist, to render an expert opinion in support of his insanity defense. The district court ruled that Dr. Himmelhoch was qualified to render such an expert opinion. At trial, Dr. Himmelhoch testified that he diagnosed Leeson with Post Traumatic Stress Disorder, partial lobe epilepsy, depression,
The government called Dr. Dana in rebuttal. The district court ruled that Dr. Dana was qualified to render an expert opinion regarding the presence or absence of severe mental illness or defect in connection with Leeson's insanity defense. Consistent with his expert witness report, Dr. Dana testified at trial that, in his opinion, Leeson was not suffering from any form of cognitive impairment or mental illness which impacted his ability to understand the nature and quality of or the wrongfulness of his actions on August 6, 2003. Also consistent with his expert witness report, Dr. Dana testified that his diagnostic workup of Leeson indicated malingering and opiate dependence. At issue on appeal is the following portion of Dr. Dana's direct testimony at trial in rebuttal to Leeson's offered testimony of Dr. Himmelhoch:
(J.A. 545-47). On appeal, Leeson contends the district court abused its discretion in allowing Dr. Dana to testify regarding the statements of Leeson's fellow inmates at MCC Chicago.
On September 22, 2004, the jury rejected Leeson's insanity defense and convicted him on the single count of being a felon in possession of a firearm. At sentencing, the district court determined that Leeson had three predicate convictions for violent felonies, which qualified him to be sentenced under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). They are: (1) a 1988 conviction in Texas state court for burglary of a habitation with the intent to commit theft; (2) a 1984 conviction in Texas state court for aggravated robbery; and (3) a 1984 conviction in Texas state court for attempted capital murder of a peace officer. Leeson does not dispute the facts underlying these predicate convictions as set forth in his presentence report (the PSR). However, Leeson objected to below and asserts as error on appeal the district court's treatment of his prior conviction for aggravated robbery and his prior conviction for attempted capital murder of a peace officer as two separate offenses that were "committed on occasions different from one another," 18 U.S.C. § 924(e)(1). According to Leeson, these last two offenses were part of a single criminal episode, such that they cannot be counted as separate predicate offenses for purposes of sentencing him under the ACCA.
The district court ultimately sentenced Leeson to 230 months' imprisonment. This timely appeal followed.
As his first assignment of error, Leeson contends the district abused its discretion in admitting, over his contemporaneous objection, the testimony of Sergeant McAtee that, as he was handcuffing Leeson, Leeson stated: "[E]asy, I could have made this bad for you." (J.A. 235). Leeson argues the statement had minimal probative value regarding his state of mind, which value was substantially outweighed by the danger of unfair prejudice. Fed. R.Evid. 403 ("Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. . . ."). According to Leeson, admission of the statement created the substantial risk that the jury would punish him for his harsh words and bad character, rather than make an objective
Leeson's assignment of error with regard to the challenged statement is without merit. Federal Rule of Evidence 401 defines relevant evidence as "evidence having any tendency to make the existence of any fact that is of consequence . . . more probable or less probable than it would be without the evidence." Fed.R.Evid. 401. Even relevant evidence, however, "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. . . ." Fed.R.Evid. 403. We review a district court's ruling on the admissibility of evidence for abuse of discretion. United States v. Brooks, 111 F.3d 365, 371 (4th Cir.1997).
As Leeson himself concedes, his statement while being handcuffed by law enforcement officers is relevant to a critical element of the government's case. Specifically, the statement is relevant to establishing that Leeson voluntarily and intentionally possessed the firearm charged in his indictment. United States v. Hobbs, 136 F.3d 384, 390 (4th Cir.1998) ("To show a § 922(g)(1) violation, the government must prove three elements: (i) that the defendant was a convicted felon at the time of the offense; (ii) that he voluntarily and intentionally possessed a firearm; and (iii) that the firearm traveled in interstate commerce at some point."). Moreover, Leeson himself made the "voluntarily and intentionally" element of his felon-in-possession charge even more of an issue by asserting an insanity defense. Finally, the statement itself is only mildly menacing. Given the highly probative value of the challenged statement and its only mildly menacing nature, we cannot reasonably conclude that its probative value was substantially outweighed by the danger of unfair prejudice. Accordingly, we hold the district court did not abuse its discretion in overruling Leeson's objection to the challenged statement.
Leeson's second assignment of error pertains to Dr. Dana's testimony to the effect that, in forming his expert opinion that Leeson did not suffer from a severe mental illness which prevented him from appreciating the nature and quality or the wrongfulness of possessing a firearm as a convicted felon on August 6, 2003, he (Dr. Dana) relied, inter alia, upon statements by two different prison inmates that Leeson "had approached them to recruit them in assisting him in looking crazy while he was on the unit," and upon a statement by one of those inmates that "he was asked by Mr. Leeson to go to the officer and tell him that an inmate in the back was acting crazy." (J.A. 547). According to Leeson, the district court abused its discretion in admitting this testimony because it was hearsay, see Fed.R.Evid. 801, which did not otherwise qualify for admission under Federal Rule of Evidence 703 (Rule 703).
Rule 703 provides:
Leeson argues that the challenged testimony did not qualify for admission under Rule 703 for three reasons. First, he claims that Dr. Dana did not sufficiently establish that inmates in a federal mental health facility, in general, are reasonably relied upon by experts in his field. Second, he claims that Dr. Dana was not in a position to determine whether the two fellow inmates were trustworthy sources of information, and therefore, Dr. Dana could not have reasonably relied upon their statements. Finally, he claims the district court failed to make a finding that the probative value of the inmates' statements substantially outweighed their prejudicial effect.
As previously stated, we review a district court's ruling on the admissibility of evidence for abuse of discretion. Brooks, 111 F.3d at 371. Here, we hold the district court did not abuse its discretion in admitting Dr. Dana's testimony regarding the inmates' out-of-court statements.
Assuming arguendo the challenged testimony constitutes hearsay as defined by Federal Rule of Evidence 801,
(J.A. 545-47) (emphasis added). As for Leeson's argument that Dr. Dana was not in a position to determine whether the two fellow inmates were trustworthy sources of information, and therefore Dr. Dana could not have reasonably relied upon their statements in forming his expert opinion, Leeson's argument is a nonstarter given that Leeson had full opportunity at trial to
In conclusion, we uphold the district court's admission of Dr. Dana's testimony regarding the challenged out-of-court statements by two of Leeson's fellow inmates at MCC Chicago.
Finally, Leeson challenges the district court's determination that he qualified for
We begin our analysis of this issue by setting forth the relevant statutory framework. Under the ACCA, a defendant convicted of a § 922(g) offense, who also has three previous convictions "for a violent felony or serious drug offense, or both, committed on occasions different from one another," 18 U.S.C. § 924(e)(1), is subject to a sentencing increase from a ten year maximum, 18 U.S.C. § 924(a)(2), to a fifteen year minimum, 18 U.S.C. § 924(e)(1).
The district court counted Leeson's following three prior convictions as predicate convictions for purposes of sentencing him under the ACCA: (1) a 1988 conviction in Texas state court for burglary of a habitation with the intent to commit theft; (2) a 1984 conviction in Texas state court for aggravated robbery (Aggravated Robbery Conviction); and (3) a 1984 conviction in Texas state court for attempted capital murder of a peace officer (Attempted Capital Murder Conviction). Leeson argued below and continues to argue on appeal that, for purposes of determining whether he has three predicate convictions qualifying him for an increased sentence under the ACCA, the district court could count his 1988 conviction in Texas state court for burglary of a habitation with the intent to commit theft and either the Aggravated Robbery Conviction or the Attempted Capital Murder Conviction, but not both, because these latter two violent felonies were not "committed on occasions different from one another." 18 U.S.C. § 924(e)(1). The government contends these two violent felonies were "committed on occasions different from one another," id., and, therefore, argues the district court did not err in determining that Leeson qualified for an increased sentence under the ACCA.
The following quote from the PSR sets forth the whole of the undisputed, underlying facts of Leeson's Aggravated Robbery Conviction and His Attempted Capital Murder Conviction:
Leeson's challenge to the district court's determination that he qualified for an increased sentence under the ACCA squarely presents for our review the issue of whether Leeson's aggravated robbery of the Food-a-Rama and his attempted capital murder of Police Officer Ronald Lee Kruise, Sr. (Officer Kruise, Sr.) constitute offenses "committed on occasions different from one another." 18 U.S.C. § 924(e)(1). Because this is an issue of law, our review is de novo. See United States v. Wardrick, 350 F.3d 446, 451 (4th Cir.2003). In analyzing this issue, we initially note our previous recognition that "Congress's use of the word `occasion' [in § 924(e)(1)] implies that it intended the offenses underlying the predicate convictions to be distinct from one another." United States v. Letterlough, 63 F.3d 332, 335 (4th Cir.1995). We have also explained that "occasions" are "those predicate offenses that can be isolated with a beginning and an end — ones that constitute an occurrence unto themselves." Id. at 335. Furthermore, we have held that, for purposes of determining the applicability of the ACCA, offenses occur on occasions different from one another when each offense "arose out of a separate and distinct criminal episode." Id. (internal quotation marks omitted).
In Letterlough, we listed several factors for courts to consider in determining whether two offenses arose out of a separate and distinct criminal episode for purposes of the ACCA: (1) whether the offenses arose in different geographic locations; (2) whether the nature of each offense was substantively different; (3) whether each offense involved different victims; (4) whether each offense involved different criminal objectives; and (5) after the defendant committed the first-in-time offense, did the defendant have the opportunity to make a conscious and knowing decision to engage in the next-in-time offense. Id. at 335-37.
Id. at 336.
Careful application of the Letterlough factors to the facts of Leeson's aggravated robbery of the Food-a-Rama and his attempted capital murder of Officer Kruise, Sr. convinces us that these two offenses constitute offenses "committed on occasions different from one another," 18 U.S.C. § 924(e)(1), for purposes of the ACCA.
The first Letterlough factor cuts in favor of a single criminal episode. The two crimes occurred in the same geographic location. This is so despite the fact that one crime occurred inside the store and the other crime occurred just outside the store. Leeson was still on the premises of the food store and, in Fourth Amendment parlance, was within its curtilage.
The second Letterlough factor cuts in favor of two separate and distinct criminal episodes. The two crimes are distinctly different in nature. While Leeson's aggravated robbery involved theft of another's property by threat of violence and one instance of the use of apparently non-deadly force (i.e., Leeson's hitting Mr. Schiefen on the neck with the shotgun), Leeson's attempted capital murder of Officer Kruise, Sr. involved the use of deadly force with the intent to murder a peace officer.
The third Letterlough factor also cuts in favor of two separate and distinct criminal episodes. The crimes had decidedly different victims. The store owner and the store's then present employees and customers were the victims of Leeson's aggravated robbery, while Officer Kruise, Sr. was the victim of Leeson's attempted capital murder of a peace officer.
The fourth Letterlough factor cuts in favor of two separate and distinct criminal episodes. Leeson's aggravated robbery and attempted capital murder of a peace officer had different criminal objectives. The first to get money and the second to commit murder in order to effectuate his escape from the scene of the earlier aggravated robbery. As the district court aptly stated,
(J.A. 747). Indeed, the point is proven by the fact that, while the effectuation of Leeson's escape may have been a part of Leeson's objective in committing the aggravated robbery, Leeson's commission of the aggravated robbery could not have been a part of Leeson's objective in shooting Officer Kruise, Sr.; the aggravated robbery having already been completed.
Application of the fifth Letterlough factor cuts in favor of two separate and distinct criminal episodes. The fifth factor considers whether the defendant had the opportunity to make a conscious and knowing decision to cease and desist his criminal behavior or engage in yet another crime. The district court answered this question in the affirmative:
In this case, Officer Kruise, Sr. saw Leeson, wearing a ski mask and carrying a double barreled sawed-off shotgun, enter the store. As opposed to following him into the store and attempting an arrest, given the crowded conditions of the store, Officer Kruise, Sr. positioned himself behind an automobile so as to afford coverage and waited for Leeson to exit the store. When Leeson exited the store, Officer Kruise, Sr. did yell "Freeze, Police," and that is when Leeson raised the shotgun and fired one shot at Officer Kruise, Sr. Under that scenario, the robbery had been successfully completed when Officer Kruise, Sr. confronted Leeson.
Accordingly, we readily agree with the district court that Officer Kruise, Sr.'s verbal command that Leeson freeze along with his self-identification as a police officer cut heavily in favor of concluding that Leeson's aggravated robbery and his attempted capital murder of a peace officer were two separate and distinct criminal episodes. First, the aggravated robbery was actually complete at the time Leeson took custody and control of the money. Second, at the time Officer Kruise, Sr. ordered Leeson to freeze and identified himself to Leeson as a police officer, Leeson was unequivocally presented with the opportunity to cease and desist from engaging in further criminal conduct.
In the final analysis, the weight of the Letterlough factors cutting in favor of two separate and distinct criminal episodes (i.e., distinctly different victims, distinctly different crimes, and Leeson's being presented with a clear opportunity to cease and desist his criminal behavior prior to the second-in-time crime) decidedly tips the scale in favor of Leeson's aggravated robbery and his attempted capital murder of a peace officer being separate and distinct criminal episodes and, thus, offenses committed on occasions different from one another for purposes of the ACCA. Cf. United States v. Williams, 187 F.3d 429 (4th Cir.1999) (assault with a firearm on a governmental officer and assault with deadly weapon (on a different police officer) with intent to kill arose out of separate and distinct criminal episodes for purposes of ACCA, even though offenses were committed within three blocks of each other and within short period of time for purpose of escaping apprehension, when ten to fifteen minute interval between offenses gave defendant opportunity to cease and desist).
To be sure, the circumstances of Leeson's criminal conduct inside and then almost immediately just outside the Food-a-Rama readily fits the description of a crime spree. However, the crime-spree nature of Leeson's conduct does not require that we view his aggravated robbery offense and his attempted capital murder of a peace officer offense as part of a single criminal episode. Rather, our holding today that these two offenses constitute crimes committed on occasions different from one another for purposes of increasing Leeson's sentence under the ACCA is consistent with our case law which recognizes that, "`criminals who commit separate crimes against different individuals while on a spree, within a
In sum, we uphold the district court's determination that Leeson qualified for an increased sentence under the ACCA.
In conclusion, we affirm Leeson's conviction and sentence.
18 U.S.C. § 17.
Because Leeson did not present his argument based upon Crawford in the argument section of his opening brief, and Crawford was readily available at the time Leeson filed his opening brief, Leeson's argument based upon Crawford is waived. See Fed. R.App. P. 28(a)(9) ("[T]he argument [section of appellant's brief] . . . must contain . . . appellant's contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies."); United States v. Kimler, 335 F.3d 1132, 1138 n. 6 (10th Cir.2003) ("We will not address issues not raised in the appellant's opening brief, especially where the arguments are based on authority that was readily available at the time of briefing."); United States v. Jones, 308 F.3d 425, 427 n. 1 (4th Cir.2002) (finding Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) argument raised for the first time in Rule 28(j) letter was waived). See also Yousefi v. INS, 260 F.3d 318, 326 (4th Cir.2001) (alien petitioner waived argument on appeal raised for the first time in his reply brief by failing to raise it in his opening brief). Indeed, considering an argument advanced for the first time in a Rule 28(j) filing is not only unfair to the appellee, it also creates the risk of an improvident or ill-advised opinion being issued on an unbriefed issue. See McBride v. Merrell Dow and Pharmaceuticals, Inc., 800 F.2d 1208, 1211 (D.C.Cir.1986) ("[c]onsidering an argument advanced for the first time in a reply brief, then, is not only unfair to an appellee but also entails the risk of an improvident or ill-advised opinion on the legal issues tendered.") (internal citations omitted).